Supreme Court allows appeal to prohibit trial due to extreme delay and lack of expert evidence explaining the complainant's silence.

THE SUPREME COURT

348/03

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN

P. L.

Applicant/Appellant

and

HER HONOUR JUDGE OLIVE BUTTIMER and THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

JUDGMENT delivered on the 20th day of December, 2004 by FENNELLY J.

1. This appeal presents the Court once more with the dilemma of when to prohibit the trial of an elderly man charged with the

commission many years ago of serious sexual crime against a young person. I agree with the proposal of Hardiman J that the appeal

be allowed and prohibition ordered. I also agree with him that the impossibility of producing evidence of the structure of the desk

behind which the offences are alleged to have been committed creates a real risk that the Appellant cannot have a fair trial. On the

other hand, I do not agree, for reasons explained below, that in a case such as the present the court can base an order of the type

now proposed on presumed prejudice flowing from the delay alone.

The Facts

2. PL (hereinafter “the Appellant”), is a member of a religious community. He was born in 1928. He taught at a primary school run by

his order in a provincial town from 1964 to 1968. He was charged with a total of twenty offences of sexual assault against three

boys, two of them brothers. The boys were then aged eleven to thirteen.

3. In January 1999, eight charges of sexual assault on BL from 1st July 1966 to 30th June 1968 were preferred against the Appellant;

four on LB from 1st July 1967 to 30th June 1968; eight on PL from 1st July 1965 to 30th June 1967.

4. The High Court (Herbert J) has prohibited the trial in respect of the charges of sexual assault on the second and third

complainants, LB and PL but not those on BL. The respondent has not appealed against the orders in relation to LB and PL. To

understand the distinction made by Herbert J, it is necessary to refer briefly to the basic facts of the three cases.

5. BL and LB state that the offences were committed at special stamp-collection classes, which the Appellant provided. BL said that

these were held on Saturday mornings, but later modified his position, as explained by Hardiman J; LB says they were on Friday

evenings. PL says that he was abused during ordinary school classes. The modus operandi, according to the complainants, was that

the Appellant would call each of them up individually in order to view his stamp collection or to get him to read a book as the case

might be. He would look through the stamps or book, with one hand on the book. He would pull the complainant in close to him and

with his other hand would fondle his private parts.

6. There are some differences between the accounts. BL says that the desk was closed at the front and sides so that only the upper

part of the body of the person behind would be visible to the rest of the class. The Appellant says that there was an opening in the

front of the desk. This is potentially material, because BL’s account of the alleged abuse includes a description of the Appellant

exposing his penis, though also stating that the Appellant always wore a soutane. If the Appellant’s description of the desk, which

has long since been unavailable, were to be correct, it might be considered that BL’s account was less likely. The Appellant disputes

that the desk was enclosed. The difference between BL and the Appellant as to whether the stamp classes were held on Friday or

Saturday morning might be material to a suggestion by the Appellant that he often played golf on Saturday mornings.

7. The Appellant, in his grounding affidavit, says that from 1964 to 1967 he taught the scholarship class at the school. The

scholarship system came to an end with the introduction of free secondary education in 1967. In 1968 he was appointed to a post of

responsibility in the school, which had the effect that he no longer had a class to teach. He agrees that he ran a stamp class, but

says that this was never on a Saturday morning. He also expressly denies any of the wrongdoing alleged by any of the complainants.

8. The Appellant complains of the effect the very long lapse of time will have, if he has to face trial, on his capacity to defend

himself. The lack of particularity of the dates will make it impossible to produce evidence of alibi. Leave to apply for Judicial Review

was granted on the following grounds:

“1. That the delay and lapse of time between the dates of the alleged offences, commencing July 1965), and the prosecution

thereof commencing in 1999, the delay being such that of itself and in all the circumstances will as a matter of probability

cause the Applicant irreparable prejudice in his defence of these proceedings.

2. That to proceed with a criminal trial would be unfair and unjust to the Applicant.

3. That to proceed with a criminal trial would be a violation of the Applicant’s right to a criminal trial in due course of law

pursuant to Article 38 sub-article 1 of the Constitution.”

The delay and its explanation

9. The delay in this case is, even in the context of the many cases of this kind which have come before the courts in recent years,

extreme. BL’s first formal complaint to the gardaí was made in August 1997, thirty one years after the date of the alleged commission

of the first offence charged and more than 29 years after the last. In the leading case of P.C. v Director of Public Prosecutions and

another [1999] 2 I.R. 25, the corresponding period was between ten and a half and thirteen years. The charges were preferred in

1999.

10. It is essential to a consideration of the decision of Herbert J not to order prohibition of the Appellant’s trial to set out in some

detail the history of the delay in this case and the explanations proffered by the Respondent and by BL.

11. As already mentioned the offences were allegedly committed when BL was in either fifth or sixth class in primary school. He left

that school at the end of 1968. He spent one year at the secondary school in the same town. He says he became disruptive in that

school and insisted that his parents move him. He then went to a different secondary school in the same town until he left on sitting

his Leaving Certificate. He suffered psychological difficulties in his teen years, which I will refer to later.

12. His career path was set out in a reply to a notice for particulars delivered in a civil action commenced by him in the High Court in

October 1997 and quoted by Herbert J as follows:

“1974 - 1976 Student nurse and childcare worker.

1976 - 1977 Childcare worker.

1978 - 1979 Student (full time diploma course). This course was in Childcare.

1979 - 1980 Childcare worker, (with young offenders).

1980 - 1982 Senior childcare worker (School for Members of the Travelling Community).

1983 -1987 Advertising executive - Manager.

1987 - 1992 Advertising executive.

1992 – 1998……… Public relations executive.

1998 onwards the Plaintiff has been and is now involved in public relations and is self employed.”

13. In addition, he told the clinical psychologist, Mr C that, in 1986-87, he had taken a course in the Creative Counselling Centre and

received a Diploma in Psychotherapy.

14. A matter of some importance in the life of the appellant was the fact that his father was a former member of the Appellant’s

religious order, and remained a committed and active supporter of that order all his life, to the extent of raising funds for it and

participating in its activities. This was described by Herbert J as “a very special connection.”

15. The following history of the life of BL, apart from his career are derived largely from what he told Dr C., a Consultant Psychiatrist

whom he began attending in 1987 to deal with the memories of the abuse. He attended Dr C. initially for therapy for some two years

but thereafter continued to attend fairly regularly for a number of years. At the time of the High Court hearing, he was still attending

him regularly twice or three times a year.

16. He gave Dr C. full details of his complaints of sexual abuse. He said that he started hating going to school, that he suffered high

levels of fear and developed respiratory problems and suffered insomnia. He would try to avoid the appellant’s class; he felt “dirty.”

He feared being ridiculed if the activities of the Appellant became known. He lacked confidence and became secretive and suspicious.

He developed behavioural problems and was in conflict with his siblings and his parents. These problems continued at secondary

school. His sexual development was extremely difficult- he worried about his sexual orientation- and he felt like drowning himself.

Herbert J summarised, as follows, the evidence of Dr C. based on his report and his evidence when cross-examined:

“Having completed the Leaving Certificate Examination he decided to leave Ireland to "find himself" [sic]. He was still having

difficulty trying to work out his sexual identity. After a number of failed relationships with girls he met his future wife in 1979

and they married in 1983. He described their marriage as "fraught with difficulties" but no details of these difficulties are

recorded. He and his wife separated in May, 1995. He is presently in a new relationship and has regular contact with his

children. These inner conflicts disappeared or faded to the point where they were no longer troublesome between 1979 and

March 1987.

In his report Dr C states that the psychological [sic] distress which evolved out of the internalisation of the activities of

Brother L. brought BL on a number of occasions through feelings of self hate and loathing to the point of considering suicide.

Dr C does not say that this man's crisis of sexual identity is a consequence of or was exacerbated by the alleged actions of

the Applicant. Dr C appears to accept the statement of B. L. that, during his adolescence he lived in an atmosphere of

impending doom. Dr C describes BL as a fragile individual who has tried at all times to transform himself with all the resources

to hand but who is still deeply distressed by "unresolved conflicts (inexperienced experiences)" which he attempts to sublimate

through his work.

Dr C has not in his report expressed any opinion with respect to the making of a complaint by BL In cross-examination he said

his report was not prepared for any Court and did not explore whether BL should or should not have complained. In cross-

examination Dr C said that he was aware that BL had begun a liaison with a woman in 1998 which he believed had come to an

end in the last year or so. He said that BL had not been on any drug therapy for depression and did not receive any in-patient

hospital treatment for this condition. He said that he saw BL twenty seven times in 1987 and twenty four times in 1988. It

was his opinion that after this treatment BL was able to deal with the ups and downs of life, - was psychologically competent,

- but there was a continuing danger of a regression at any time. He said that he saw BL in 1989 on six occasions, in 1990 on

nine occasions, 1991 on eight occasions, in 1992 on ten occasions, not at all in the years 1993 1994 1995 and 1996, on seven

occasions in 1997 and two occasions in 1999.

Dr C said that when BL met and married his wife he was able then at least to put aside his doubts as to his sexual identity and

this was an enormous boost to his self esteem. Dr C felt sure that the actions of Brother L had done severe psychological [sic]

harm to BL Dr C said however that if he had to decide whether the delay in making a complaint was related to the alleged

abuse, - and he had not been asked to and was not expressing any opinion on this, - he would draw upon as much material as

he could in relation to BL before reaching a conclusion.”

17. Herbert J also had the evidence of a clinical psychologist, Mr C., whose evidence he discounted as being insufficiently explained

by reference to available scientific literature upon which he said he had relied. He excluded this evidence from his consideration of the

adequacy of the explanations offered for the delay.

18. BL first made contact with the Appellant’s order in 1997. He made a statement of complaint to the gardaí on 30th September

1997. The Appellant was interviewed by the gardaí in November and December 1997. The charges were preferred against him on 2nd

January 1999. He was returned for trial on 13th May 1999. The Appellant is now 76 years of age and retired. He has always denied

the charges.

The High Court Ruling on delay

19. Herbert J broke down the period of delay into distinct sections. He accepted that, during his years at secondary school, 1968 to

1974, BL was inhibited from complaining about the alleged sexual abuse through the influence of the Appellant “as a member of a

class of persons who continued to be authority figures” in his life. This factor was compounded by the close connection between BL’s

father and the Appellant’s religious order.

20. In respect of the period 1974-1983, he noted that BL completed a Diploma Course in Childcare and had six years experience as a

child-care worker in this country and in the United Kingdom. He referred to “an unparticularised suggestion that he did not enjoy a

close relationship with his father.” Nonetheless, he concluded that he was “justifiably inhibited by this very special connection

between his father and [the order] added to his own anxieties about his sexual orientation, from disclosing or complaining of the

alleged abuse.”

21. Mr Michael Counihan, Senior Counsel for the Appellant, accepted, at the hearing of the appeal that, up to 1983, the year when

BL’s father died, the delay was explicable.

22. After 1983, Herbert J thought that “the question of the existence or not of a continuing causal connection between the failure to

disclose or complain… [was] more difficult to determine.” He noted that:

“BL was now a man of more than twenty eight years of age, a manager in an advertising and public relations business, a

husband and a father. The alleged extreme difficulties of his adolescent years and the anxieties with regard to his sexual

identity were to a very considerable extent if not totally resolved.”

23. The learned judge went on to refer to BL’s severe depression in 1987-88, stating that it “did not require any form of in-patient

hospital treatment or any form of drug therapy.” He also noted that there was “no expert evidence from a psychologist to which the

Court may attach any weight that he was inhibited from reporting or complaining of the alleged sexual abuse by reason of some

recognised psychological condition.” He, nonetheless, summarised the effect of the evidence of Dr C. as follows:

“Dr C described BL as a fragile individual, a man deeply distressed with a history of self denigration, depression and behavioural

problems, originating at the time of the alleged sexual abuse by Brother L. (which allegation I must assume to be true for the

purpose of this part of inquiry). In the opinion of Dr C this psychological distress [sic] evolved out of the internalisation by BL

of the activities of Brother L. It is clear that these problems have not resolved, as evidence the attendances by BL or Dr C

from 1987 to date. His marriage and the birth of his 2 children appeared to have afforded BL a sort of temporary respite only

from his difficulties. Dr C expressed the view that Brother L. had done severe psychological [sic] harm to BL”

24. The ultimate conclusion and reasoning of Herbert J on this issue are as follows:

“The Court must ask itself, on this evidence and assuming the complaint of BL to be true, whether as a matter of probability

the delay on the part of BL in complaining of the sexual abuse was a result of that offending conduct itself. In my judgment

the answer must be in the affirmative. In my view this complainant's statement in his affidavit, which I have already cited,

but consider worthy of citing again,

‘It took me all these years to come to terms with the fact that I had been abused by Brother L., and that it was only

after extensive counselling and therapy that I felt strong enough to come out in the open and talk about what had

happened.’

is consistent with the evidence. The fact that he has commenced a Civil Action is no basis for doubting its veracity. Admissible

evidence from a psychologist would have greatly assisted the Court and such evidence should be the norm in these cases, but

an absence of such evidence is not conclusive and the Court may reach a conclusion on non expert evidence including that of

the Complainant.”

The relevant principles

25. The Appellant’s written submissions concentrate on the inconsistency of the High Court judgment, insofar as it distinguished

between the cases of BL and the other two complainants. However, Herbert J, in the passages quoted, gave detailed and careful

consideration to the complaints made by BL on their own merits. I think it is preferable to follow that approach. I propose to confine

myself to a consideration of the correctness of the decision of Herbert J, expressed in the immediately preceding paragraph to the

effect the delay in complaining of the alleged abuse was “a result of that offending conduct itself.” Hardiman J, in his judgment,

concludes that the trial should be prohibited on the distinct ground that there is a real risk of an unfair trial by reason of the

impossibility of producing the desk behind which the offending conduct is alleged to have taken place. In that respect, I have said

that I agree with his judgment.

26. On the separate issue of whether prohibition should issue by reason of the long delay alone, I believe that a number of decisions

of this Court require a particular approach to be adopted in cases of long delayed prosecution for sexual offences against minors. In

particular, it needs to be considered, as Herbert J did, whether the delay is attributable to the acts of the alleged miscreant. This

Court, composed as it is for the hearing of the present appeal, may not disturb precedent established and now enshrined in the law as

a result of full consideration by the Court composed of five judges. For that reason, while concurring with the judgment of Hardiman J

that prohibition should issue, I take a different view with regard to the first question addressed by him.

27. It is generally agreed that the correct approach is encapsulated in the judgment of Keane C.J. in P. O’C. v Director of Public

Prosecutions and another [2000] 3 I.R. 87 at page 93:

“There is not, and never has been, any statutory period of limitation in respect of the institution of prosecutions for serious

crimes. However, the requirement in Article 38.1 of the Constitution that no person is to be tried on any criminal charge "save

in due course of law" entitles any person so charged to a trial with reasonable expedition. Accordingly, significant and culpable

delay on the part of the prosecuting authorities may result in the continuance of a prosecution being restrained. Where there

is no such delay on the part of the prosecuting authorities, but there has been significant delay on the part of the victim of

the alleged crime in reporting it to the authorities, a question may arise as to whether the delay is explicable by reference to

the nature of the crime itself. This question arises in cases of sexual offences allegedly committed by adults against children

and particularly in cases where the adult is in a position of authority in relation to the child, e.g. as parent, step-parent,

teacher or religious.

In cases coming within the last named category, the inquiry conducted by the court which is asked to halt the trial necessarily

involves an assumption by the court that the allegation of the victim is true. Without such an assumption, it would not be

possible for the court to conduct any such inquiry and the court would be obliged automatically to halt the trial of a person

because of the expiry of a lengthy period of time, even though the failure to make a complaint was due to domination

exercised by the adult over the young child during the period of the abuse and even where - as has happened in a number of

cases - the abuse has been perpetrated over many years by a parent or step-parent of a child actually living in the family

home with the perpetrator. Since that patently cannot be the law, the presumption of innocence which applies in its full rigour

to a criminal trial cannot apply to inquiries of this nature.

If, such an assumption having been made, the court invited to halt the trial is satisfied that, as a matter of probability, the

failure of the victim to complain of the offending conduct was the result of the conduct itself, the delay, of itself and without

more, will not be a reason for halting the trial.”

28. Denham J delivered a separate judgment in which she restated the position she had adopted in P.C. v DPP, mentioned above. In

effect, her judgment agreed with that of the Chief Justice, in particular in holding that, according to the “special jurisprudence on

delay in the prosecution of those accused of child sexual abuse,” the assumption is made that the complaint is truthful. Geoghegan J

agreed with the judgment of the Keane C.J. It is true that Murray J, as he then was, and Hardiman J expressed reservations about

the propriety of making even a contingent assumption of guilt, but the majority view is that of Keane C.J. Therefore, the Court upheld

the decision of the High Court (McGuinness J) to the effect that the delay was excusable. In fact, of course, the Court also upheld

the High Court decision on the distinct of specific prejudice. It was on the latter ground, the trial was prohibited.

29. The “special jurisprudence,” so described by Denham J had been developed over a number of cases, not least in a number of

important judgments of her own. It is worth considering, in particular, the case of P.C. v Director of Public Prosecutions. As I have

already mentioned, the delay in that case was of the order of ten and a half to thirteen years. The applicant was a bus driver. He

was accused of using his position when driving young girls to swimming lessons and in giving them lessons to commit sexual offences

against them. The complainant was one of these girls. This Court reversed a High Court finding that the applicant had not been

sufficiently been shown to have a position of dominance or control over the complainant. Judgments were delivered by Denham,

Keane and Lynch JJ. Hamilton C.J. and Barrington J expressed agreement with all three.

30. Denham J stated (page 60 of the report):

“Fundamental principles at the heart of a constitutional society are at the kernel of this case. These principles and

constitutional rights have to be weighed and balanced by the court. They include the community's right to legal issues being

determined in the courts; to have criminal charges processed through the courts; the right and duty of the prosecutor to

bring to the courts for adjudication allegations of serious child sexual abuse alleged to have taken place; the community's right

to have its society protected, especially its most vulnerable - children. Also at the core of this case is the rule of law; the

right of the applicant to a fair trial; the right of the community to the rule of law for all, including the applicant.”

31. It is unnecessary, for the purposes of the present appeal to refer to the evidence which led the Court unanimously to reverse the

High Court finding that, at the time of the alleged offence, the applicant enjoyed a position of dominance or authority in relation to

the complainant. It is not disputed, in the present case, that the same position prevailed at the time of the alleged offences and for

some years thereafter. It is noteworthy that the enquiry is not limited to the period when dominance comes to an end. The broader

question is whether the delay in making the complaint, assuming it to be true, is attributable to the actions of the accused. In P.C.,

the offences were alleged to have occurred in 1982 to 1984. The complaint was formally instituted in 1995. However, a material

aspect of the case was that, in 1988, the complainant had told some school friends, her teacher, the school principal and her parents

of the alleged abuse, but that none of these persons took any action.

32. In dealing with this matter, Denham J said (page 62):

“If the matter of dominance alone were to determine the issue of the delay from 1988 to 1995, the applicant would have a

much stronger case. But it is not the only factor. Each case must be determined on its own circumstances and there can be

no definitive list of factors. Factors may include the relative ages of the accused and victim, the issue of dominance, the

relationship of the parties, the place of the alleged abuse and the nature of the abuse. As knowledge grows of the nature and

effects of child sexual abuse and as medical, psychiatric and psychological evidence is expanded and presented to the courts

other factors may become apparent. Also, each case depends on its own circumstances.”

33. The effects of the abuse, she said, continued after the end of dominance. She relied on the evidence of psychologists to

conclude that “the complainant was affected by the incidents… until 1995…” Denham J found the delay until 1995 “comprehensible.”

The failure of the “authority figures” to whom she had complained in 1988, when she was still a schoolgirl, to support her meant that

she had not taken “an informed decision to make a formal complaint in 1988.” Thus, the delay from 1988 was not the complainant’s

delay. She was still suffering from the effects of the abuse from 1988 to 1995. Although dominion ended in 1988, thereafter “there

was a repressed effect on the complainant from the alleged actions of the applicant...” (See page 64). It is clear that the learned

judge relied on the expert evidence given in the High Court to lead her to this conclusion.

34. Keane J, as he then was, emphasised (see page 67) that “the fact that the offence charged is of a sexual nature is not of itself a

factor which would justify the court in disregarding the delay, however inordinate, and allowing the trial to proceed.” Having

concluded that dominion could be inferred, inter alia, from the age disparity of the parties, he continued, in a much-cited passage:

“But the issue is not whether the court is satisfied to any degree of proof that the accused person committed the crimes with

which he is charged. The issue in every such case is whether the court is satisfied as a matter of probability that the

circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until the

initiation of the prosecution. It is necessary to stress again that it is not simply the nature of the offence which discharges

that onus. All the circumstances of the particular case must be considered before that issue can be resolved.”

35. Lynch J, in his concurring judgment, also concluded (page 79) that “the applicant was largely responsible for the delay by the

complainant in making the complaint.” He added, however:

“This is not to say that there may not be cases of extreme delay, some of most of which may be attributable to the applicant

himself, where nevertheless prohibition might be granted, but this is not such as case.”

36. So far as is relevant for the purposes of the decision in the present case, I conclude that the cases show:

1. Long delay by a complainant in making a complaint of sexual abuse may be explained by the fact that the accused, by reason

of disparity of age, combined with the tenure by the accused of a position of trust or authority over the complainant;

2. For the purposes of the inquiry as to whether the delay is explicable, but not further, it will be assumed that the allegations

of sexual abuse are true;

3. Delay, even after the end of the period when the accused is in a position to exercise dominion, may be explained by showing

that the alleged sexual abuse continued to affect the complainant in the sense that he or she was psychologically inhibited from

complaining. In deciding this issue, psychological or psychiatric evidence may be relevant, but is not essential. All the relevant

circumstances of the particular case must be considered. The question is not simply whether the complainant continues to be

affected by the alleged abuse, but whether such effects constitute a reasonable explanation for the delay in complaining;

4. The burden of proving that the trial should be prohibited lies on the applicant. However, where the delay is prima facie such

as to give rise to a presumption that the applicant’s right to a fair speedy trial is infringed, the Court will have regard to the

adequacy of any explanation offered by the complainant.

37. I believe that the case-law, so summarised, does not entitle the court, in a case such as the present, to order prohibition on the

ground of delay alone. My divergence from the view of Hardiman J can be traced, I think, to the interpretation of the passage from

page 68 of the judgment of Keane J in P.C. v Director of Public Prosecution. I do not think he was postulating three different tests,

the first being whether the trial should be prohibited on the ground of delay alone. I believe that a reading of all the judgments in that

case shows that the court was laying down a “special jurisprudence” for cases of child abuse. The later judgment of Keane C. J. in P.

O’C. v Director of Public Prosecutions and another, from which I have quoted above, makes it clear that a different approach is

adopted on child-abuse cases.

38. Nor do I think that the absence of an “island of fact” is relevant to this issue. Hardiman J, in his judgment delivered to-day recalls

the passage in his judgment in JO’C v DPP [2000] 3 I.R. 478 at 504, which concludes:

“The more nearly a serious trial consists of mere assertion countered by bare denial, the less it resembles a forensic inquiry at

all.”

39. It has to be remembered that, apart altogether from the cases of delayed trials, there have always been and will continue to be

criminal trials, especially for sexual offences, where there are only two witnesses to the crucial events. Even when judges were

required to warn juries about the danger of conviction in the absence of corroboration, they were entitled to convict in its absence.

More importantly, since the corroboration warning has been abolished by statute, trials may well come down, subject to the ordinary

and vital safeguards to which the accused is entitled in every criminal trial, to one word against another. In the absence of presumed

or demonstrated prejudice, I do not believe that delay makes this any less likely. Denham J dealt with this issue in a later passage of

her judgment in P.C. v Director of Public Prosecution (page 63):

“There remains the question as to whether the simple efflux of time, for whatever reason, has so prejudiced the applicant

that there is a real risk that he will not receive a fair trial. While the delay in this case is very considerable (though not unusual

in criminal prosecutions of this kind) it has not altered the nature of the trial. A trial of charges of this type, in the

circumstances described, is in fact a trial of the credibility of the witnesses. The delay is damaging to both parties. The nature

of the offences alleged is such that it is not likely that any witness could usefully have been called even if the trial took place

in the years immediately after the complainant reached 16 years of age. Even the allegations as to what took place in semi-

public in the swimming pool relate to actions alleged to have taken place under water when the applicant was teaching the

complainant to swim and probably even if the issue were tried in a court of law immediately after the alleged events they

would be tried on the credibility of the witnesses.”

40. The “trial of the credibility of witnesses,” must, however, take place in the context where the accused person enjoys the

protection of all the guarantees provided by law and the Constitution. The accused, in every criminal trial, is entitled to the

presumption of innocence; the prosecution must prove every fact beyond reasonable doubt; a jury is required to act on defence

evidence if it might reasonably be true; there are strict rules regarding the admissibility of evidence; increasingly, the prosecution

authorities are required to make full disclosure of all information in their possession; finally, our Constitution assigns to the jury the

fundamental decision on guilt or innocence. When these matters are taken into account, I do not think a properly conducted criminal

trial amounts to a simple and equal contest based on allegation and denial between prosecution and defence or that, in the trial of

“credibility of witnesses” equal value is accorded to prosecution and defence evidence.

Has the delay been sufficiently explained?

41. The relevant period of delay in this case is the period from 1968, the date of alleged commission of the last of the offences until

1999, when the Appellant was charged. It is over thirty years.

42. At page 23 of his judgment, Herbert J said, by reference only to the period of unexplained delay in the cases of the other two

complainants:

“I am satisfied in the circumstances of this particular case from the length of this delay alone that the court is entitled to

presume and does so presume that the capacity of the Applicant to defend himself is thereby materially impaired and that

accordingly the trial as respects these two complainants should not be allowed to proceed because of the risk of its being

unfair even if no specific prejudice is in fact established.”

43. It can be inferred that the failure of the learned judge to make a similar statement in respect of the charges relating to BL was

due solely to the fact that, in that case, he found that there was an explanation for the delay. It is a striking fact, nonetheless, that,

as this passage implies, the Appellant may, in the context of the “special jurisprudence,” be required to accept the risk of an unfair

trial. Where, having assumed for the purpose of that inquiry the truth of the allegations, the Court finds the delay in making them to

be reasonable, an accused person may be deprived of his constitutional right to a speedy trial.

44. The length of the delay in this case is, as I have said at the extreme end of the scale. Lynch J postulated the possibility of “cases

of extreme delay, some of most of which may be attributable to the applicant himself, where nevertheless prohibition might be

granted....” This is, on any view, such a case. The Appellant has discharged the burden of showing that such a long-delayed trial

would prima facie be unconstitutional. This does not alter the burden of proof. It merely means that the evidence to counter it and to

persuade the court not to order prohibition may need to weigh more heavily in the balance. It is, in my view, not sufficient to say, as

some psychologists have said in reports produced in cases of this kind, that it was “reasonable” for the complainant not to complain.

That “reasonableness” must be of a quality worthy of setting in the balance against the constitutional right of the accused person. I

would agree with the statement of Herbert J, at page 12, that:

“…there must be evidence that the particular alleged victim of sexual abuse as a minor was inhibited from disclosing or

complaining of this abuse by some psychiatric disease or some psychological defect or abnormality duly established by expert

or non expert testimony.”

45. In JMB v DPP and others, (Supreme Court, Unreported 17th December 2003), Keane C.J. held that the failure over many years of

the patients of a medical practitioner to complain of improper sexual touching of them by him under the guise of medical examination

was “perfectly understandable” (page 19 of the judgment.). He held that the trial judge had been entitled to reach the decision he

did without the evidence of a psychologist or equivalent expert. He went on to discuss the value of such evidence as follows:

“As the authorities demonstrate, it may undoubtedly play an important part in inquiries of this nature, where the alleged

victims failed to make any complaint in respect of patently criminal conduct even at a stage when they had become adults

and might be presumed to be fully aware of the wrongful nature of the offending conduct. It is true that in S. -v- D.P.P., which

was also a case in which a medical practitioner was alleged to have committed sexual assaults upon young patients, there

were expert reports from psychologists dealing with each of the complainants and offering an explanation for the delay.

However, the fact that it was thought necessary, or at least desirable, to adduce such evidence in that case is not a ground

for concluding that it is essential in every such case. I have no doubt that the trial judge was correct in the approach he

adopted, i.e. of considering the admissible evidence, attaching such weight to it as it deserved and drawing such inferences

from the evidence as seemed to him necessary or reasonable.”

46. Counsel for the Appellant challenges the conclusion of the learned trial judge that BL’s delay in making the complaint was a result

of the alleged offending behaviour. His argument may be summarised as follows. BL was not under any dominion from the Appellant

after he left school. His father’s death in 1983 removed one of his stated obstacles to making a complaint. He pursued a professional

career in child care. He married in 1983 and had children. Although he said that his marriage was fraught with difficulties, the learned

trial judge found that his “inner conflicts disappeared or faded to the point where they were no longer troublesome between 1979 and

1987. He underwent extensive therapy with Dr C from 1987. The learned trial judge cited the opinion of Dr C that, after BL had

attended him twenty seven times in 1987 and twenty four times in 1988, he “was able to deal with the ups and downs of life - was

psychologically competent - but that there was a continuing danger of regression at any time.”

47. The ultimate conclusion of the learned trial judge to the effect that, as a matter of probability, the delay of BL in making any

complaint was “a result of that offending conduct itself,” seems to be directly based on the statement made by BL in his affidavit,

and cited by the learned trial judge at page 18 of his judgment that:

“It took me all these years to come to terms with the fact that I had been abused by Brother L., and that it was only after

extensive counselling and therapy that I felt strong enough to come out into the open and talk about what had happened.”

48. He said that this was consistent with the evidence. BL has thus persuaded the court that it was only the “extensive counselling

and therapy” he had received which made him strong enough to come out in the open. The therapy in question had been provided by

Dr C. The clinical psychologist was retained only for the purpose of the Judicial Review proceedings and conducted only one interview.

He provided no therapy and Herbert J disregarded his evidence in any case. Therefore, it has to be assumed that it was Dr C’s

treatment which made him strong enough to complain and, by necessary implication, that until he had received that treatment, he

was not strong enough.

49. In this context, it is important to recall certain features of the report and evidence of Dr C, most particularly the fact that neither

in his report nor in his evidence did Dr C express any opinion as to whether the delay was related to the alleged abuse. In evidence,

he said that he would draw upon as much material as he could in relation to BL before reaching a conclusion. It is true that Dr C’s

report paints a picture of BL as a seriously damaged individual. He suffered during adolescence from a serious crisis of sexual identity.

He internalised his psychological problems to the extent of becoming obsessional and even suicidal. He also suffered trauma as a

result of the break-up of his marriage. In the circumstances of this case, I think it is significant that a psychiatrist of undisputed

competence and expertise, who had treated BL over a number of years and was intimately aware of his problems felt unable to

express any opinion as to whether BL was unable to or even inhibited from expressing an opinion that the undoubted extremely long

period of delay in making the complaint was a result, assuming the complaints to be true, of the alleged offending behaviour. It

appears that Herbert J based his opinion on the statement of BL himself.

50. The learned trial judge was obliged, as has repeatedly been said, to take all the circumstances of the case into account. As

stated by Denham J in the passage quoted above, these include the relationship between the parties. Clearly, while he was a

schoolboy BL was under the care or control of the Appellant’s order and then of another order of teachers in the same town. It is

furthermore accepted that the strong relationship of BL’s father with the Appellant’s order was an important inhibiting factor until the

latter’s death in 1983. Thereafter, the relationship of the parties ceases to play any role. The only basis for explaining the delay must,

therefore, be psychological.

51. The extreme length of the delay must also enter into account. In my view, it is not simply a question of seeing whether the

complainant has justified part of the delay and considering the remaining period as the relevant one. In the present case, that would

mean that delay was explained up to 1983, some eighteen years after the date of the last act of alleged abuse, and that the relevant

period is from 1983 to 1987, a period of fourteen years. At that time, when considering whether further delay is adequately explained,

the earlier period becomes relevant. A complainant, in that situation, must take account of the fact that the person to be accused is

likely to face a trial delayed by the cumulative effect of both periods. In this case, the relevant total lapse of time is from 30th June

1968 (the date of the last charge) and 2nd January 1999. It can be described as amounting to over thirty years.

52. During many of these years, BL exhibited many features of a normal competent person. He married and had children. He pursued a

career in childcare and obtained qualifications on that field. He changed his career to the area of advertising and public relations and

set up his own business.

53. In all of these circumstances, I believe the learned trial judge was not justified in concluding that the delay had been adequately

explained in the absence of expert psychological or psychiatric evidence. Since he had discounted the evidence of the psychologist,

he would have had to have that evidence from Dr C, who pointedly declined to give it.

54. In summary, the delay was so extreme that cogent evidence attributing the delay to the alleged abuse was required. In its

absence, the learned trial judge was not justified in reaching the conclusion he did. For that reason, I would allow the appeal and

grant the order of prohibition sought.